"Women Cannot Be Denied Right To Autonomy In The Garb of Protection":Women's Rights Group Moves Allahabad HC Against UP Anti-Conversion Ordinance

Akshita Saxena

18 Jan 2021 7:48 AM GMT

  • Women Cannot Be Denied Right To Autonomy In The Garb of Protection:Womens Rights Group Moves Allahabad HC Against UP Anti-Conversion Ordinance

    A Lucknow based women's rights group, Association for Advocacy and Legal Initiatives, has moved the Allahabad High Court seeking to intervene in the ongoing proceedings against the Anti-Conversion Ordinance passed by the UP Government.The High Court has allowed the intervention application filed through Advocate Vrinda Grover. At the outset, the application alleges that the Ordinance has...

    A Lucknow based women's rights group, Association for Advocacy and Legal Initiatives, has moved the Allahabad High Court seeking to intervene in the ongoing proceedings against the Anti-Conversion Ordinance passed by the UP Government.

    The High Court has allowed the intervention application filed through Advocate Vrinda Grover.

    At the outset, the application alleges that the Ordinance has a 'disproportionate impact' on the constitutional rights of women, especially under Articles 14, 15, 19, 21 and 25 of the Constitution, as well as an egregious impact on Constitutional rights of all citizens.

    Further, the organization has resisted the UP Government's claim that conversion for marriage is not out of choice but due to intervention of personal law.

    No conflict between choice to marry and religious conversion under personal laws

    The organization has submitted that there is no conflict in law between an individual's right to choice in marriage and the right to practice a religion of one's belief. To substantiate this, it has submitted,

    "The Special Marriage Act, 1954, allows for inter faith marriages in India, and there is no compulsion to convert one's religion under personal laws to exercise the choice to marry someonc outside one's faith. It is only those persons who wish to practise the faith of their marital partner who choose to convert their religion for the purpose of marriage."

    Also Read: Mandatory Publication Of Notice Of Intended Marriage Under Special Marriage Act Violates Right To Privacy: Allahabad High Court

    It is asserted that there is no systemic compulsion to convert one's religion to marry a person of another religion.

    "The choice to abide by and fall within the jurisdiction of some personal law a for the purpose of marriage is thus a real choice borne out of free will and volition. There is thus no conflict between the freedom of choice and the right to one's dignity when it comes to conversion for marriage, as human dignity is best protected when one's choice to convert (or not) for marriage is respected," the application states.

    Individual Autonomy and Freedom of Choice of women are protected under Article 21

    The organization has argued that the impugned ordinance, in so far as it outlaws conversion for the sole purpose of marriage, infantilizes the legitimate choice made by an adult person who voluntarily chooses to opt for a way of life by converting their religion to that of their partner to marriage.

    Reliance is placed on the Supreme Court's decision in Shefin Jahan v. Asokan KM, (2018) 16 SCC 368, where it categorically injuncted that the State must not interfere in the private lives of citizens, especially in affairs pertaining to the choice of spouse in marriage, and that the State must be committed to promoting and protecting the plurality and diversity of India's culture, including where it manifests in intimate personal choices and decisions.

    UP Ordinance On Conversion Is Nothing But Criminalization Of Inter-Faith Marriages : Petitioner's Rejoinder In Allahabad High Court

    The application also refers to the case of Shakti Vahini v. Union of India, (2018) 7 SCC 192, where the Supreme Court held that,

    "The choice of an individual is an inextricable part of dignity. for dignity' cannot be thought of where there is erosion of choice…When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation."

    Women cannot be denied right to autonomy in the garb of protection

    Referring to the Supreme Court's findings in Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 against overstepping women's autonomy and their right to take decisions as adults in the garb of protection, the organization submits,

    "The impugned Ordinance if tested with strict scrutiny, reveals that the absence of a narrow definition of "aggrieved person", and the broad provision allowing family relatives to file FIRs, leads to complete annihilation of the individual autonomy and liberty of women who are given no say in determining the legitimacy of their conversion if it is followed by marriage. The impugned Ordinance promotes gender stereotypes which views the right of the family or community as supreme and while treating women as repositories of 'honour', deprives her of her personality, privacy and dignity."

    Further, it is alleged that the Proviso to Section 5(1) of the impugned Ordinance classifies women along with members of the SC/ST community and minors as a vulnerable class, and provides enhanced punishment for conversion of a woman as opposed to that of a man.

    "The classification of women and men as two distinct classes of victims with separate punishment for both is unreasonable as it has no nexus to any legitimate object. and is a result of a stereotypical notion that women are 'weaker' partners in a marriage, lacking in capacity and competence to make independent decisions. Such notions when reinforced by statutes promote gender stereotypes that are prejudicial to the interest and right to equality of women, and fail to pass the test of strict judicial scrutiny," the application states.

    Impugned ordinance strengthens conspiracy theory of Love-Jihad

    The organization has pointed out that the term 'Love Jihad' is often used to stir divisive sentiments and promote archaic and patriarchal notions of 'honour' which denude the individual autonomy of women. However, there is no official data available to substantiate the rhetoric and claim that 'Love Jihad' is a real and grave phenomenon.

    It has urged that judicial institutions cannot remain oblivious to the ground realities in the state of Uttar Pradesh, where the rhetoric of 'Love-Jihad' has been allowed to run riot and vigilante groups and relatives of young Hindu women have 'villainized' Muslim men who have consensual relationships with Hindu women.

    It is alleged that the impugned ordinance, is a legislative attempt to strengthen the sentiment that marriages solemnized between persons born to different religions are a social evil which is being perpetrated by Muslim men who marry Hindu women, and that the same poses a threat to the Hindu community.

    It is also argued that the impugned ordinance falls foul of a Division bench judgment in Salamat Ansari v. State of UP & Ors., that recently upheld that the right to life and liberty of two mature individuals in choosing a partner, and their right to freedom of choice irrespective of the religion they choose to profess.

    Impugned Ordinance is hit by vagueness and overbreadth

    Apart from giving a broad definition of an 'aggrieved person' as discussed above, the organization has submitted that the phrase "any marriage which was done for the sole purpose of unlawful conversion and vice-versa" in Section 6 of the impugned ordinance, is undefined, overbroad and vague, thus open to rampant abuse and misuse, and suffers from the vice of lacking "sufficient definiteness" for a penal provision.

    Further it is alleged that the impugned Ordinance defines the term "Allurement" in an overbroad manner, bringing within its sweep legitimate and natural aspirations that motivate individual decisions for the purpose of marriage.

    Inter alia, it is alleged that Section 8(3) of the impugned Ordinance is vague insofar as it does not provide any statutory guideline regarding the scope of the enquiry to be conducted by the District Magistrate.

    "The said provision states that the District Magistrate shall get an enquiry conducted through the police with regard to the "real intention, purpose and cause" of conversion. However, the impugned Ordinance provides no guidelines as to what intention, surpose and cause is legitimate or illegitimate. It also provides no clarity as to the scope of the power of the District Magistrate to act upon the findings of such an enquiry," the application states.

    Conversion vs Reconversion: Unreasonable classification barred by Article 14

    It is significant to note that the proviso to Section 3 of the impugned Ordinance lays down that "reconversion" to a person's previous religion is not illegal, even if it is vitiated by fraud, force, allurement, misrepresentation and so on.

    The organization has submitted that thus creates an "unreasonable classification" between conversion and reconversion under the said Ordinance, and is thus hit by the vice of arbitrariness under Article 14.

    "The distinction between conversion and reconversion is not based on any rational classification having a proximate nexus with a legitimate object, and is thus arbitrary in nature. The only permissible classification ought to be between free and voluntary conversion and forced conversion, irrespective of the earlier religion of the person converted," the application states.

    It is alleged that the setting of the impugned ordinance leads to an irresistible conclusion that the it seeks to provide legal sanction to the notion of 'Ghar Wapsi' propagated by various right wing Hindu organizations in the state.

    Rights of women in marriage jeopardized, leaving them more vulnerable

    The organization has submitted that various rights accrue to parties to a marriage when a marriage is solemnized. However, it is alleged that the impugned Ordinance by voiding marriages under Section 6, will result in an anomaly by denial of various rights to parties to a marriage and will make women more vulnerable.

    In this context it is submitted,

    "The right to Maintenance is an extremely important right which accrues after marriage to a wif, and is a legal tool embedded in the Code of Criminal Procedure as well as in personal laws to protect the rights of a woman in a marriage. Under the impugned Ordinance, a woman would have no legitimate claim to Maintenance if a marriage is rendered void under Section 6, as she would no longer be a 'wife' in the eyes of law.

    Children born out of wedlock in marriages which are subsequently rendered void by the impugned Ordinance would also suffer social as well as legal impediments to their life, as despite being worn out of wedlock, they would be rendered illegitimate children upon the marriage being declared void."

    Procedure prescribed in Section 8 and 9 violates the right to privacy and fails the test of proportionality

    The application states that the mandatory procedure of declaration set out in Section 8 and 9 of the impugned Ordinance pierces the zone of privacy in which an individual chooses to exercise their right to convert their religion, and makes public the most intimate and private spheres of an individual's personhood.

    Reliance is placed on Justice KS Puttaswamy & Ors. v. Union of India & Ors., 2017 10 SCC 1, where it was held that the choice to express one's religion includes within it the choice to not express it.

    In this backdrop it is argued that to force an individual to make a public declaration of the choice to convert their religion denies to an individual the right to be silent and the right to be left alone in matters of faith and religion.

    Exercise of right under Article 25 cannot be declared void or criminalized by impugned Ordinance

    The Applicant-organization has submitted that voluntary choice to convert one's religion is protected under Article 25 of the Constitution. However, the same is wrongly declared void and illegal for non-compliance with the administrative procedure laid down under Section 8 and 9 of the impugned Ordinance.

    "The Constitution of India in Article 21 allows for religion to be practiced in solitude, silently without pubic glare, and the decision of an individual to not make a public declaration of his conversion cannot render the conversion illegal or void, as that militates against the freedom of conscience and the right to liberty of an individual," the application states.

    Reversal of burden of proof violates Articles 14 and 21

    It is a settled position of law, the organization submits, that in any criminal case, the burden of proof as a general rule shall always be on the prosecution to prove the guilt of the accused person.

    However, the impugned ordinance presumes every religious conversion to be unlawful and places the burden of proof on the person who has caused or facilitated the conversion to prove that it is not an unlawful conversion.

    Resisting this the organization has submitted,

    "The reversal of burden of proof is only permissible when there are some "special facts" within the knowledge of the accused which the accused can easily prove or disprove, and the same has been held to not result in unreasonable curtailment of the rights of the accused. However, in the impugned Ordinance, the burden is placed on an accused who does not have any such special knowledge.

    The presumption of innocence is a human right which forms the bedrock of criminal jurisprudence and is guaranteed under Article 20…The reversal of burden of proof provided in Section 12 of the impugned Ordinance violates Articles 14 and 21, and deserves to be struck down."

    Reliance is placed on Babu v. State of Kerala, (2010) 9 SCC 189, where the Supreme Court has categorically stated that, "The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction."

    Other grounds

    • State Ordinance cannot prevail over central legislation (Special Marriage Act, Hindu Marriage Act, etc.);
    • Ordinance is passed without any urgency or necessity and amounts to colourable exercise of power and violates the basic structure doctrine;
    • Supreme Court's decision in Rev. Stainislaus case is distinguishable and does not cover the impugned Ordinance;
    • State is bound by International law obligations to protect human rights, right to choice in marriage, rights of women, etc.;
    • There is no publicly available data which suggests that there has been any increase in the rate of religious conversion in the state of Uttar Pradesh, nor is there any evidence to suggest that 'Love Jihad' is a real phenomenon.
    • The impugned ordinance is an affront to core human and fundamental rights and violates inalienable constitutional principles of human dignity, non-discrimination and equality; right to associational and decisional privacy, right to choice, right to marry, freedom of conscience and separation of powers, and is thus ultra vires PART III of the Constitution, and liable to be struck down.

    The application is filed through Advocates Vrinda Grover, Tanmay Sadh,Soutik Banerjee and Aakarsh Kamra.

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